Make Way for the Mall: A Principled Look at Eminent Domain

Jim and Joanne Saleet of Lakewood, Ohio, never expected to see their home of 38 years bulldozed to make way for a retail mall and luxury condominium units. For the city of Lakewood, the move is perfectly legal under a provision of the law called eminent domain, which says that private property can be taken for public use. Therefore, the city merely has to say that the house is blighted (in the Saleet’s case, their home does not have a two-car attached garage) and offer some kind of compensation. The city can then use the land to attract richer neighbors and bigger businesses . Madeline Cain, Lakewood’s mayor, admits that the bottom line is the tax base, but also insists that taking property from the Saleets and others is about quality of life and making sure that the city has a vibrant and attractive community. [1]

The power of eminent domain is implicit, taken from the Just Compensation clause of the 5 th Amendment: “nor shall private property be taken for public use, without just compensation.” [2] It is an instrumental power: it is a means through which government, acting under its enumerated police powers, pursues other ends, such as building roads or saving wildlife. However, eminent domain power is not inherently legitimate: based on natural law, none of us should have a right to condemn a neighbor’s property, no matter the purpose or compensation. This is why the power of eminent domain was called a despotic power in the seventeenth and eighteenth centuries. However, eventually it was ratified by the principle of pareto superior , the idea that at least one party (the general public) is made better off, and no party is hurt (as long as he or she receives just compensation). [3] Unfortunately, efforts to redevelop America’s cities have transformed eminent domain from a “narrowly construed last resort into a widely, almost routinely used development tool,” and this transformation is hurting the Saleets and 10,000 more homeowners and businesses across the United States like them who have been told to make way for private development. [4]

In another case, the Maricopa County Superior Court of Arizona ruled against Randy Bailey, who was fighting against the city of Mesa’s use of its power of eminent domain to take his family-owned brake shop in 2002 and replace it with a commercial hardware store. [5] In his decision, Judge Robert Myers said that the city of Mesa was justified in taking Bailey’s land because the city’s redevelopment plan called for improving its image and making it more economically and socially attractive. Furthermore, the judge calls for “putting land to its highest and best use to maximize its retail potential.” Judge Myers was way off base. These eminent domain cases are inconsistent with a principled view of land use, because they reduce the value of community to aesthetics, the value of land to fiduciary potential, and the value of human freedom to the coercive power of political influence.

No longer do most victims of eminent domain receive just compensation for their loss of property. One of the most candid proponents of using eminent domain as an urban development tool, Dr. Claire Gaudiani, president of the New London Development Commission, said, “Anything that’s working in our great nation is working because somebody left skin on the sidewalk.” [6] Court battles to protect against such abuse are long, arduous, and often prohibitively expensive, particularly when the cost is borne by one or two property owners. Though there are nonprofit organizations who defend property owners facing eminent domain cases, right now these legal defense groups can only handle about a tenth of the abusive cases that come to their attention. [7] Furthermore, small “mom-and-pop” businesses lose priceless name recognition and family tradition, and many have to pay much more than they are compensated for new equipment, fixtures, and furniture for a comparable building elsewhere. [8] Still more are forced into early retirement, left wondering where the American Dream says that they must give up their lives, homes, and careers so that the government can improve its tax base. [9]

For people of faith, there are a couple of theological roadblocks that may inhibit understanding eminent domain and its use as a tool for achieving public policy goals. First of all, some think that since humans are sinful, they should not be counted on to make decisions about how to use land. But this view fails to take into account the fact that institutions are marred by sin, as well. A private property system balances interests and requires voluntary cooperation, emphasizing the need for accountability in achieving public objectives. Second, there is the command to love your neighbor as yourself, which may suggest that if a property decision is seemingly made for the common good, it should not be prevented. [10] However, loving a neighbor doesn’t entail requiring her to bear the burden of justifying her property rights or paying a high cost to gain richer neighbors and bigger businesses. Therefore, the power of eminent domain should be scaled back to include only those uses that are true public goods, uses that are owned and controlled by the public. [11]

Positive strides have been made to ensure that eminent domain is limited to its constitutionally authorized use. Property owners and activists have become increasingly vocal and successful in their grassroots efforts. In New Rochelle, New York, they defeated a plan to replace their neighborhood with a new IKEA store. In Baltimore County, Maryland, property owners petitioned to allow voting on a referendum that overturned a plan to condemn a large area for commercial and industrial development. The Castle Coalition, a non-profit organization, litigates cases challenging eminent domain and has published a pamphlet, “Government Theft: The Top 10 Abuses of Eminent Domain: 1998-2002.” [12] At the federal level, Congress has proposed all sorts of legislation: measures that would require government agencies to assess whether their actions might impinge on property rights, measures that would provide statutory compensation for certain federal agency actions, and measures that would remove procedural roadblocks that frustrate efforts by owners to challenge federal, state, and local regulations of property. By building on these successes and by taking a principled approach to eminent domain power, the property rights movement will prove that the ultimate protection for private property will be found in reducing government to its legitimate functions. [13]